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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 223 of 2013
BETWEEN :
DALE ELLIOT GORDON
PLAINTIFF
AND:
MOHAMMED INSHAD
DEFENDANT
(Ms.) Laisani Tabuakoro for the Plaintiff
Mr. Mukesh Chand for the Defendant
Date of Hearing : - 23rd July 2015
Date of Ruling : - 25th November 2015
RULING
(A) INTRODUCTION
(1) The matter before me stems from the Summons filed by the Defendant pursuant to Order 18, rule (18) of the high Court Rules and the inherent jurisdiction of the Court seeking the grant of the following Order;
"That the Plaintiff's action herein against the Defendant be struck out under Order 18 Rule (18) of the High Court Rules 1988 and under the Inherent Jurisdiction on the ground that:-
(i) It disclosed no reasonable cause of action against the Defendant; and
(ii) It is frivolous and vexatious; and
(iii) It is an abuse of the process of the Court
AND that the Plaintiff's action against the Defendant be dismissed and that the Defendant be at liberty to enter judgment for his costs including the costs of this application."
(2) The Summons is strongly resisted by the Plaintiff.
(3) The Plaintiff and the Defendant were heard on the Summons. They made oral submissions to Court. In addition to oral submissions, the Defendant filed a careful and comprehensive written submission for which I am most grateful.
(B) THE FACTUAL BACKGROUND
(1) What are the circumstances that give rise to the present application?
(2) To give the whole picture of the action, I can do no better than set out hereunder the main averments/assertions of the pleadings.
(3) The Plaintiff in his Statement of Claim pleads inter alia; (so far as relevant);
Para 1. The Plaintiff is a pensioner originally from the United States of America presently residing in Fiji.
2. The Plaintiff resides with his wife Vilisi Waqa on the subject land known as Lot 68 Mulomulo Subdivision, in the province of Ba.
4. The subject land is an agricultural holding and the lease has very clear standard clauses outlined in the lease conditions and also the iTaukei Land Trust Act (Cap 134) of Fiji
5. The Plaintiff being an American national is not familiar with relevant laws pertaining to agriculture leases and/or such holdings.
6. The Plaintiff was brought onto the subject land by the Defendant sometime back in 2006.
10. The Defendant befriended and persuaded the Plaintiff to move to Mulomulo, Nadi to the subject land and illegally offered the Plaintiff part of the subject agriculture holding to build a house and reside on the said land.
11. That unknown to the Plaintiff the Defendant was not and still is not a registered tenant of the subject land and had no legal capacity or powers to allow the Plaintiff to come onto and reside on the land.
13. The Defendant then illegally assured the Plaintiff to begin purchasing building materials to build a house to live in on the subject land.
14. That both the Plaintiff and the Defendant are not bona fide tenants of the land nor are they registered lessees nor do they have prior consent of the iTaukei Land Trust Board to commence any dealings on the land.
15. That the Plaintiff has a steady income by way of his pension of approximately FJD$2,700.00.00 a month and has gradually used part of his pension monies to commence construction of his home on the subject land.
16. That at all material times the Plaintiff had no knowledge that the Defendant's arrangements and representations to allow the construction of the Plaintiff's house on the subject land was illegal and in breach of the proper tenant's agriculture lease conditions.
17. That the Plaintiff has illegally resided on the subject land since 2007 and has spent a significant amount of his pension income on the purchase of building materials for the construction of his 2 bedroom house on the subject land.
19. That at all material times it was unknown to the Plaintiff that he was unlawfully occupying an agriculture lease holding.
20. That at all material times it was also unknown to the Plaintiff that the Defendant was not the registered lessee of the said agriculture holding. Instead the lease of the land was registered to one Kusum Bi d/o Mahabub.
21. That the Plaintiff further came to know by way of instructions from one Kolinio Mudunasoko an estate officer of the iTaukei Land Trust Board that he was not supposed to be paying rent to the Defendant or the Defendant's family for that matter.
22. That the Plaintiff has been paying rent of $150.00 per month from May 2007 to November 2013 to the Defendant and his family residing on the land. In total the Plaintiff has paid land rent to the Defendant and his family in the sum of FJD$12,000.00.
23. That after the Plaintiff learned that it was all an illegal exercise to pay rent to the Defendant and his family he began making plans to dismantle his 2 bedroom house and seek an alternate piece of land to relocate to.
24. That one the Plaintiff stopped paying rent and started seeking alternative land to relocate to the Defendant began provoking the Plaintiff by:-
27. That a corresponding notice of unlawful occupation addressed to the Plaintiff has been duly served clearly detailing that the Plaintiff remove his home from the land within 14 days of receipt of the said unlawful occupation notice. The last day of the time limited for acknowledging service otherwise judgment may be entered against him without notice.
(4) The Plaintiff claims the following;
Para (a) An Order that the Defendant by himself, his agents, servants or
otherwise be restrained from preventing the Plaintiff's dismantling of his 2 bedroom house and removing it along with his personal belongings from the subject land.
(b) An order that the Defendant and/or his family reimburse the
Plaintiff the sum of FJD$12,000.00 being monies illegally paid as land rent to the Defendant and his family.
(c) An order that the Defendant pay the gazette penalty fees of $3,018.75 (Three Thousand and Eighteen Dollars and Seventy Five cents.)
(d) Interest thereon from the date of Judgment to the date of payment at the rate subject to the jurisdiction of this Honorable Court.
(e) General damages.
(f) Damages for stress, anguish and emotional distress caused by the Defendant's actions against me.
(g) Such further relief as this Honourable Court deems just.
(h) Costs of and incidental to this proceedings.
(C) THE STATUS OF THE SUBSTANTIVE MATTER
(1) The action was instituted by the Plaintiff on 23rd December 2013 by way of Writ of Summons and Statement of Claim.
(2) The present application is made about eight (08) months later.
(D) THE LAW
(1) Against this factual background, it is necessary to turn to the applicable law and the judicial thinking in relation to the principles governing the striking out an action.
(2) Rather than refer in detail to the various authorities, I propose to set out important citations, which I take to be the principles of the play.
(3) Provisions relating to striking out are contained in Order 18, rule 18 of the High Court Rules. Order 18, rule 18 of the High Court Rule reads;
18. – (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that –
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court;
And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(4) No evidence shall be admissible on an application under paragraph (1) (a).
Footnote 18/19/3 of the 1988 Supreme Court Practice reads;
"It is only plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley MR. in Hubbuck v Wilkinson[1898] UKLawRpKQB 176; (1899) 1 Q.B. 86, p91 Mayor, etc., of the City of London v Homer (1914) 111 L.T, 512, CA). See also Kemsley v Foot and Qrs (1952) 2KB. 34; (1951) 1 ALL ER, 331, CA. affirmed (195), AC. 345, H.L .The summary procedure under this rule can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable " (Att – Gen of Duchy of Lancaster v L. & N.W. Ry Co (1892)3 Ch 274, CA). The summary remedy under this rule is only to be applied in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process or the case unarguable (see per Danckwerts and Salmon L.JJ in Nagle v Feliden (1966) 2. Q.B 633, pp 648, 651, applied in Drummond Jackson v British Medical Association(1970)1 WLR 688 (1970) 1 ALL ER 1094, (CA) .
Footnote 18/19/4 of the 1988 Supreme Court Practice reads;
"On an application to strike out the statement of claim and to dismiss the action, it is not permissible to try the action on affidavits when the facts and issues are in dispute (Wenlock v Moloney) [1965] 1. WLR 1238; [1965] 2 ALL ER 87, CA).
It has been said that the Court will not permit a plaintiff to be "driven from the judgment seat" except where the cause of action is obviously bad and almost incontestably bad (per Fletcher Moulton L.J. in Dyson v Att. – Gen [1910] UKLawRpKQB 203; [1911] 1 KB 410 p. 419)."
(5) In the case of Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641, it was held;
"The jurisdiction to strike out a pleading for failure to disclose a cause of action is to be sparingly exercised and only in a clear case where the Court is satisfied that it has all the requisite material to reach a definite and certain conclusion; the Plaintiff's case must be so clearly untenable that it could not possibly success and the Court would approach the application, assuming that all the allegations in the statement of claim were factually correct"
(6) In the case of National MBF Finance (Fiji) Ltd v Buli [2000] FJCA 28; ABU0057U.98S (6 JULY 2000), it was held;
"The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention. It follows that an application of this kind must be determined on the pleadings as they appear before the Court"
(7) In Tawake v Barton Ltd [2010] FJHC 14; HBC 231 of 2008 (28 January 2010), Master Tuilevuka (as he was then) summarised the law in this area as follows;
"The jurisdiction to strike out proceedings under Order 18 Rule 18 is guardedly exercised in exceptional cases only where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised and where the cause of action must be so clearly untenable that they cannot possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney –v- Prince Gardner [1998] 1 NZLR 262 at 267."
(8) His Lordship Mr Justice Kirby in Len Lindon –v- The Commonwealth of Australia(No. 2) S. 96/005summarised the applicable principles as follows:-
- It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
- To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action ... or is advancing a claim that is clearly frivolous or vexatious...
- An opinion of the Court that a case appears weak and such that is unlikelyto succeed is not, alone, sufficient to warrant summary termination... even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and arguments and extended time for reflection will sometimes turn anapparently unpromising cause into a successful judgment.
- Summary relief of the kind provided for by O.26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.... If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
- If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleading.
- The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(9) In Paulo Malo Radrodro vs Sione Hatu Tiakia & Others, HBS 204 of 2005, the Court stated that:
"The principles applicable to applications of this type have been considered by the Court on many occasions. Those principles include:
(10) In Halsbury's Laws of England Vol 37 page 322 the phrase "abuse of process" is described as follows:
"An abuse of process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."
(11) The phrase "abuse of process" is summarized in Walton v Gardiner (1993) 177 CLR 378 as follows:
"Abuse of process includes instituting or maintaining proceedings that will clearly fail proceedings unjustifiably oppressive or vexatious in relation to the defendant, and generally any process that gives rise to unfairness"
(12) In Stephenson –v- Garret[1898] UKLawRpKQB 22; [1898] 1 Q.B. 677 it was held:
"It is an abuse of process of law for a suitor to litigate again over an identical question which has already been decided against him even though the matter is not strictly res judicata.
Domer –v- Gulg Oil (Great Britain) (1975) 119 S.J 392
"Where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to failure, they may be dismissed as being an abuse of the process of the court"
Steamship Mutual Association Ltd –v- Trollope and Colls (city) Ltd (1986) 33 Build L.R 77, C.A
"The issue of a writ making a claim which is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it is an abuse of process of the Court and will be struck out"
(E) ANALYSIS
(1) Let me now proceed to examine the substance of the Defendant's application to strike out the Plaintiff's action and the claim bearing all those legal principles in my mind.
(2) Before passing to the substance of the application, let me record that the counsel for the Defendant in his written submissions has done a fairly exhaustive study of the judicial decisions and other authorities which he considered to be applicable.
I interpose to mention that I have given my mind to the oral submissions made by both Counsel as well as to the written submission filed on behalf of the Defendant and the judicial authorities referred to there in.
(3) If, as I apprehend, now comes a most material and crucial fact.
I ask myself, what is the question in these proceedings?
The Defendant says that the pleadings against him disclose no reasonable cause of action, which is itself leads to the pleadings being scandalous, frivolous and vexatious.
As against this, the Plaintiff says that the Statement of Claim discloses a reasonable cause of action and tribal issues.
(4) At the outset, I must confess that there are three (03) problems that concern me.
First; what is the conduct of the Defendant that is in question?
Secondly, what is the essence of the Plaintiff's complaint?
Thirdly, whether the Statement of Claim reveals a reasonable cause of action and constitutes tribal issues?
(5) Addressing myself to the first question posed at paragraph four (4), to give the whole picture, I can do no better than reiterate hereunder the main averments/assertions of the Plaintiff's Statement of Claim (so far as relevant);
Para 1. The Plaintiff is a pensioner originally from the United States of America presently residing in Fiji.
2. The Plaintiff resides with his wife VilisiWaqa on the subject land known as Lot 68 Mulomulo Subdivision, in the province of Ba.
4. The subject land is an agricultural holding and the lease has very clear standard clauses outlined in the lease conditions and also the iTaukei Land Trust Act (Cap 134) of Fiji
5. The Plaintiff being an American national is not familiar with relevant laws pertaining to agriculture leases and/or such holdings.
6. The Plaintiff was brought onto the subject land by the Defendant sometime back in 2006.
10. The Defendant befriended and persuaded te Plaintiff to move to Mulomulo, Nadi to the subject land and illegally offered the Plaintiff part of the subject agriculture holding to build a house and reside on the said land.
11. That unknown to the Plaintiff the Defendant was not and still is not a registered tenant of the subject land and had no legal capacity or powers to allow the Plaintiff to come onto and reside on the land.
13. The Defendant then illegally assured the Plaintiff to begin purchasing building materials to build a house to live in on the subject land.
14. That both the Plaintiff and the Defendant are not bona fide tenants of the land nor are they registered lessees nor do they have prior consent of the iTaukei Land Trust Board to commence any dealings on the land.
15. That the Plaintiff has a steady income by way of his pension of approximately FJD$2,700.00.00 a month and has gradually used part of his pension monies to commence construction of his home on the subject land.
16. That at all material times the Plaintiff had no knowledge that the Defendant's arrangements and representations to allow the construction of the Plaintiff's house on the subject land was illegal and in breach of the proper tenant's agriculture lease conditions.
17. That the Plaintiff has illegally resided on the subject land since 2007 and has spent a significant amount of his pension income on the purchase of building materials for the construction of his 2 bedroom house on the subject land.
19. That at all material times it was unknown to the Plaintiff that he was unlawfully occupying an agriculture lease holding.
20. That at all material times it was also unknown to the Plaintiff that the Defendant was not the registered lessee of the said agriculture holding. Instead the lease of the land was registered to one Kusum Bi d/o Mahabub.
21. That the Plaintiff further came to know by way of instructions from one Kolinio Mudunasoko an estate officer of the iTaukei Land Trust Board that he was not supposed to be paying rent to the Defendant or the Defendant's family for that matter.
22. That the Plaintiff has been paying rent of $150.00 per month from May 2007 to November 2013 to the Defendant and his family residing on the land. In total the Plaintiff has paid land rent to the Defendant and his family in the sum of FJD$12,000.00.
23. That after the Plaintiff learned that it was all an illegal exercise to pay rent to the Defendant and his family he began making plans to dismantle his 2 bedroom house and seek an alternate piece of land to relocate to.
24. That one the Plaintiff stopped paying rent and started seeking alternative land to relocate to the Defendant began provoking the Plaintiff by:-
27. That a corresponding notice of unlawful occupation addressed to the Plaintiff has been duly served clearly detailing that the Plaintiff remove his home from the land within 14 days of receipt of the said unlawful occupation notice. The last day of the time limited for acknowledging service otherwise judgment may be entered against him without notice.
(6) The Plaintiff claims the following;
Para (a) An Order that the Defendant by himself, his agents, servants or
otherwise be restrained from preventing the Plaintiff's dismantling of his 2 bedroom house and removing it along with his personal belongings from the subject land.
(b) An order that the Defendant and/or his family reimburse the
Plaintiff the sum of FJD$12,000.00 being monies illegally paid as land rent to the Defendant and his family.
(c) An order that the Defendant pay the gazette penalty fees of $3,018.75 (Three Thousand and Eighteen Dollars and Seventy Five cents.)
(d) Interest thereon from the date of Judgment to the date of payment at the rate subject to the jurisdiction of this Honorable Court.
(e) General damages.
(f) Damages for stress, anguish and emotional distress caused by the Defendant's actions against me.
(g) Such further relief as this Honourable Court deems just.
(h) Costs of and incidental to this proceedings.
(7 ) Let me proceed to consider the second question posed at paragraph (04).
If, as I apprehend, the gist and the essence of the Plaintiff's claim is that he expended money on the Defendant's land by erecting a house on the part of the Defendant's land in the expectation, induced and encouraged by the Defendant that he would be allowed to remain in occupation for as long as he decides, an equity was created such that the Court should satisfy the equity by allowing the Plaintiff to remain in occupation of the house for as long as he desired.
There is also a claim in the Plaintiff's Statement of Claim to recover rent that he has paid to the Defendant. This is a claim for restitution.
Moreover, the Plaintiff is claiming equitable damages. The gist of his claim is that the Defendant's conduct was unconscionable in collecting rent from the Plaintiff with knowledge that no consent had been given by the Native Land Trust Board. The Plaintiff also alleges that the Defendant engaged in deceptive conduct in, knowing that the land in question is Native Land, not informing the Plaintiff that the Defendant had not obtained the consent of the Native Land Trust Board to the tenancy and keeping all monies as profits for his use and benefit.
(8) Let me proceed to consider the third question posed at paragraph four (4)
The Defendant's argument runs essentially as follows; [Counsel in his submissions writes ...]
The Plaintiffs agreement with the Defendant did not have the consent of the I-Taukei Land Trust Board. The Plaintiff was in occupation of the premises without the consent of I-Taukei Land Trust Board therefore his occupation was unlawful.
There is a statutory prohibition against such dealing without the consent of the itaukei land trust board. Therefore equity can not intervene. Refer this Honorable Court to the case of Charlmer v Partoe [1963] 3 AER 552.
The Plaintiff admitted in his affidavit filed on the 23rd of December 2013 that the agreement to stay on the land did not have consent of the I-taukei land trust board. With the greatest respect we submit that the dealings by the Plaintiff is deemed null and void as the consent of the I-Taukei land trust board was never obtained.
Therefore we seek that the Plaintiff's Statement of Claim be dismissed with costs.
(Emphasis Added)
As against this proposition, I have heard no word said on behalf of the Plaintiff.
(9) Let me summaries my understanding of the salient facts as follows;
- ❖ The land in question in this case is "Native Land" within the meaning of "Native Land Trust Act".
- ❖ The Defendant is not the registered owner of land.
- ❖ The Defendant has been in possession and occupation of the Native Land without the consent of the Native Land Trust Board.
- ❖ With the consent of and arrangement with the Defendant, the Plaintiff built for himself a residence on part of the Native Land.
- ❖ The Plaintiff has been in possession and occupation on part of the Native Land since 2007 and still enjoying the same right.
(10) In the course of the hearing of the Summons, the Defendant admitted that with his consent and arrangement with him, the Plaintiff built for himself a residence on part of the land. It seems to me perfectly plain that the Defendant has invited and expressly encouraged the Plaintiff to expend money upon part of the Native Land upon the faith of an assurance and promise that that part of the land will be made over to the Plaintiff. The lease possible legal effect which in my opinion could be given to this arrangement, would be to describe it as a "licence to occupy coupled with possession". It is worth mentioning that the consent of the Native Land Trust Board was admittedly not obtained.
The Defendant contends that the transaction is illegal in as much as the Native Land Trust Board's consent was not obtained prior to the dealing with the land; and that an equitable charge could not be brought into being by an unlawful transaction, and the Plaintiff's Claim therefore fails.
(11) The proposition advanced by the Defendant requires some examination of the Native Land Trust Act and the law regarding "promissory or equitable estoppels".
I should quote Section 12 of the Native Land Trust Act which provides;
"12.-(1) Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void:
Provided that nothing in this section shall make it unlawful for the lessee of a residential or commercial lease granted before 29 September 1948 to mortgage such lease."
Reading as best, I can between the sections of Native Land Trust Act, it seems to me, that Section 12 prohibits any dealing in land which is comprised in Native Lease without the consent of the Board as lessor.
Moreover, unlawful occupation of Native Land is an offence under Section 27 of the Native Land Trust Act.
On a strict reading of section 12 and 27, it is perfectly clear that the two sections are clearly designed for the control and protection of the Native Land.
I do not think I need to read anymore!
The counsel for the Defendant forcefully submitted that the present case falls within the rule of law enunciated in the Privy Council decision of Chalmers v Pardoe, (1963) 3 A.E.R 552. In that case, Mr. Pardoe was the holder of a lease of Native Land. The Native land is subject to Section 12 (1) of the Native Land Trust Act which is in the exact same terms as Section 13 of the Crown Lands Act.
The leading case upon the interpretation of Section 12 of the Native Land Trust Act isChalmers v Pardoe(supra).As earlier mentioned, Mr. Pardoe was the holder of a lease of Native Land. By a "friendly arrangement" with Mr Pardoe, Mr Chalmers built a house on a part of the land and entered into possession. The consent of the Native Land Trust Board was never obtained. The rule of law enunciated by the Privy Council was that the transaction amounted to an agreement for a lease or sublease but even regarding it as a licence to occupy coupled with possession and that a "dealing" with the land took place.
As to whether the "friendly arrangement" amounted to a "dealing" within the meaning of s.12 of the Ordinance, Sir Terence Donovan, in delivering the speech of the Privy Council in Chalmers v Pardoe (supra), explained it as follows:
"Repeating this term, but without necessarily adopting it, the Court of Appeal held, as their lordships have already indicated, that the least effect which could be given to the "friendly arrangement" was that of a licence to occupy coupled with possession. Their lordships think the matter might have been put higher. "I gave him the land for nothing" said MrPardoe. Again, "He could get anything – a sublease or a surrender, which was perfectly correct..." And so on. In their lordships view an agreement for a lease or sublease in
Mr Chalmers' favour could reasonably be inferred from Pardoe's evidence.
Even treating the matter simply as one where a licence to occupy coupled with possession was given, all for the purpose, as Mr Chalmers and Mr Pardoe well knew, of erecting a dwelling-house and necessary buildings, it seems to their lordships that, when this purpose was carried into effect, a "dealing" with the land took place. On this point their lordships are in accord with the Court of Appeal: and since the prior consent of the Board was not obtained, it follows that under the terms of s.12 of the ordinance, cap 104, this dealing with the land was unlawful. It is true that in Harman Singh and Backshish Singh v Bawa Singh [ 1958-59] FLR 31, the Court of Appeal said that it would be an absurdity to say that a mere agreement to deal with land would contravene s.12, for there must necessarily be some prior arrangement in all such cases. Otherwise there would be nothing for which to seek the Board's consent. In the present case, however, there was not merely agreement, but, on one side, full performance: and the Board found itself with six more buildings on the land without having the opportunity of considering beforehand whether this was desirable. It would seem to their lordships that this is one of the things that s.12 was designed to prevent. True it is that, confronted with the new buildings, the Board as lessor extracted additional rent from Mr Pardoe: but whatever effect this might have on the remedies the Board would otherwise have against Mr Pardoe under the lease, it cannot make lawful that which the ordinance declares to be unlawful."
In the context of the present case, I am mindful of the rule of law enunciated in the following decisions;
Henry J.P. in Phalad v Sukh Raj (1978) 24 FLR 170 said;
"The cases already cited show that the Courts have held that the mere making of a contract is not necessarily prohibited by section 12. It is the effect of the contract which must be examined to see whether there has been a breach of section 12. The question then is whether, upon the true construction of the said agreement the subsequent acts of appellant, done in pursuance of the agreement, "alienate or deal with the land, whether by sale transfer or sublease or in any other manner whatsoever" without the prior consent of the Board had or obtained. The use of the term "in any other manner whatsoever" gives a wide meaning to the prohibited acts. For myself I have no doubt but that the true construction of the said agreement and the said agreement and the substantial implementation of such an agreement for sale and purchase, under which possession is completely parted with to the purchaser and immediate mutual rights and liabilities are created in respect of such exclusive possession, is a breach of section 12 if done before the consent is obtained.
The words "alienate" and "deal with" as elaborated in section 12, are absolute and do not permit conditional acts in contravention. If before consent, acts are done pending the granting of consent, which come within the prohibited transactions, then the section has been breached and later consent cannot make lawful that which was earlier unlawful and null and void. This does not cut across the cases already cited which deal with the formation of the contract as contrasted with an immediately operative agreement and substantive acts in performance thereof."
Gould V.P in Jai Kissun Singh v Sumintra, 16 FLR p 165 said;
". . . .it is not necessary that the agreement between the parties should have progressed to a stage at which formal documents of lease or assignment has been executed before the transaction became a dealing requiring prior consent. That, having regard to the objects of the section, is only common sense. Otherwise, a purchaser under agreement could remain indefinitely in possession and control, exercising the rights of full ownership and even protecting himself by caveat. If an agreement is signed and held inoperative and inchoate while the consent is being applied for I fully agree that it is not rendered illegal and void by section 12. Where then, is the line to be drawn? I think on a strict reading of section 12 in the light of its object, an agreement for sale of native land would become void under the section as soon as it was implemented in any way touching the land, without the consent having been at least applied for ... ... ..."
(Emphasis Added)
In Chalmers v Pardoe [1963] 1 WLR 677 said;
"But even treating the matter simply as one where a licence to occupy, coupled with possession was given, all for the purpose, as Chalmers and Pardoe well knew, of erecting a dwelling house and accessory buildings it seems to their Lordships that when this purpose was carried into effect a "dealing" with the land took place."
In the context of the present case, I must confess that I am much inclined to lean in favour of the more liberal judicial thinking reflected in the following judicial decisions.
In MISTRY AMAR SINGH v KULUBYA 1963 3 AER p.499, a Privy Council case, it was held that a registered owner of the land was entitled to recover possession because his right to possession did not depend on the illegal agreements in that case but rested in his registered ownership and as the person in possession could not rely on the agreements because of their illegality he could not justify his remaining in possession. That case "concerned an illegal lease of 'Mailo' land by an African to a non-African which was prohibited by a Uganda Statute except with the written consent of the Governor. No consent was obtained to the lease. After the defendant had been in possession for several years the plaintiff gave notice to quit and ultimately sued him for recovery of the lands. He succeeded.
Also in RAM KALI f/n Sita Ram and SATEN f/n Maharaj (Action No. 93/77) KERMODE J. expressed a similar view:-
"It is not necessary to determine whether there was an alleged sale as the defendant contends or a tenancy as the plaintiff alleges. Either transaction was illegal without the consent of the Director of Lands. ... While the plaintiff did disclose the illegal tenancy her claim for possession is based on the independent and untainted grounds of her registered ownership and she does not have to have recourse to the illegal tenancy to establish her case."
In Khan v Prasad [1996] FJHC 85; HBC 0480J, 96s (23 December 1996), Mr Justice Pathik expressed the view that where the Director of Lands consent was not obtained on the defendant's occupation of a crown protected lease, the defendant cannot justify the remaining in possession.
Let me now proceed to examine the law regarding "promissory or equitable estoppel"
The relevant principle is expounded in;
❖ "Spry" in his "Principles of Equitable Remedies" 04th
Edition, (1990), p. 179.
❖ "Snell" in his "Principles of Equity" 27th Edition, p. 565
❖ "Spencer Bower & Turner" in "Estoppel by
Representation" 3rd Edition, (1977) Chapter 12.
Spry in his "Principles of Equitable Remedies" 4th Edition 1990 page 179 sets out the basic principles of equitable proprietary estoppel as follows:
➢ The Plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendants or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship.
➢ The Plaintiff has induced the defendant to adopt that assumption or expectation.
➢ The Plaintiff acts or abstains from acting in reliance on the assumption or expectation.
➢ The defendant knew or intended him to do so.
➢ The Plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled.
➢ The defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
Lord Kingsdown in the case of Ramsden v Dyson [1866] UKLawRpHL 7; (1865) L.R. 1 H.L. 129 said at p. 140;
"If a man under a verbal agreement with a landlord for a certain interest in land or what amounts to the same thing under the expectation created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation with the knowledge of the landlord and without any objections by him, lays out money upon the land, a Court of Equity will compel the landlord to give effect to such promise or expectation."
Also at p. 140 Lord Cransworth L.C. said:
"If a stranger begins to build on any land supposing it to be his own and I perceiving his mistake, abstain setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land in which he had expended money on the supposition that the land was his own."
Promissory or equitable estoppel is described in Halsburys Laws of England, Fourth Edition, Volume 16, at paragraph 1514:
"When one party has, by his words or conduct, made to the other a clear and unequivocal promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced"
Snell's Equity (13th Ed), at para 39 – 12 states that:
"Proprietary estoppel is one of the qualification to the general rule that a person who spends money or improving the property of another hasno claim to reimbursement or to any proprietary interest in the property".
Proprietary estoppel, unlike promissory estoppel, is permanent in its effect. It is capable even of conferring a right of action. For it to apply there must exist essential elements or conditions. The Court, in Denny v. Jensen [1977] NZLR 635 identified four conditions namely, as p.638.
"There must be an expenditure, a mistaken belief, conscious silence on the part of the owner of the land and no bar to the equity".
Megarry J in In re Vendervell's Trust (No. 2) [1974] CH 269 describes the essential elements this way, at p. 301,
"... the person to be estopped (I shall call him O, to represent the owner of the property in question), must know not merely that the person doing the acts (which I shall call) was incurring the expenditure in the mistaken belief that A already owned or would obtain a sufficient interest in the property to justify the expenditure, but also that he, O, was entitled to object to the expenditure. Knowing this, O nevertheless stood by without enlightening A. The equity is based on unconscionable behaviour by O; it must be shown by strong and cogent evidence that he knew of A's mistake, and nevertheless dishonestly remained willfully passive in order to profit by the mistake".
In Denny v. Jensen [1977] 1 NZLR 635 at 639, Justice White very aptly summarised the doctrine as follows:-
"In Snell's Principles of Equity (27ed) 565 it is stated that proprietary estoppel is" ... capable of operating positively so far as to confer a right of action". It is "one of the qualifications" to the general rule that a person who spends money on improving the property of another has no claim to reimbursement or to any proprietary interest in that property. In Plimmer v Willington City Corporation (1884) 9 App Cas 699; NZPCC 250 it was stated by the Privy Council that "... the equity arising from expenditure on land need not fail merely on the ground that the interest to be secured has not been expressly indicated" (ibid, 713, 29). After referring to the cases, including Ramsden v Dyson [1866] UKLawRpHL 7; (1866) LR 1 HL 129, the opinion of the Privy Council continued, " In fact, the court must look at the circumstances in each case to decided in what way the equity can be satisfied" (9 App Cas 699), 714; NZPCC 250, 260). In Chalmers v Pardoe [1963] 1 WLR 677; [1963] 3 All ER 552 (PC) a person expending money was held entitled to a charge on the same principle. The principle was again applied by the Court of Appeal in Inwards v Baker [1965]2 QB 29; [1965] EWCA Civ 4; [1965] 1 All ER 446. There a son had built on land owned by his father who died leaving his estate to others. Lord Denning MR, with whom Danckwerts and Salon LJJ agreed, said that all that was necessary:
"... is that the licencee should, at the request or with the encouragement of the landlord, have spent the money in expectation of being allowed to stay there. If so, the court will not allow that expectation to be defeated where it would be inequitable so to do".(ibid, 37, 449).
(Emphasis Added)
Hon. Mr Justice Deepthi Amaratunga observed in Vishwa Nand v Rajendra Kumar(Civil Action HBC 271 of 2012) that;
"The general rule, however is that "liabilities are not to be forced upon people behind their backs" and four conditions must be satisfied before proprietary estoppel applies. There must be an expenditure, a mistaken belief, conscious silence on the part of the owner of the land and no bar to the equity."
(Emphasis Added)
Hon. Madam Justice AnjalaWati in Wilfred Thomas Peter v HiraLal and Farasiko (Labasa HBC 40 of 2009) held that;
"I must analyse whether the four conditions have been met for the defence of proprietary estoppel to apply. The conditions are:
i. An expenditure
ii. A mistaken belief
iii. Conscious silence on the part of the owner of the land
iv. No bar to the equity
The doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has enacted to be invalid. [Chand v Prakash, 2011, FJHC 640, HB169. 2010]
Gates J (as then was) considered somewhat a similar situation in "Indar Prasad andBidyaWati v Pusup Chand" (2001) 1 FLR 164 and said;
"Section 13 of the State Lands Act would appear to be a complete bar to any equitable estoppel arising in the Defendant's favour."
"Estoppel against a statute" is discussed as follows in Halsburys Laws of England, 4th Edition, Volume 16, at paragraph 1515,
"The doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted is to be invalid, or to give the court a jurisdiction which is denied to it by statute, or to oust the court's statutory jurisdiction under an enactment which precludes the parties contracting out of its provisions. Where a statute, enacted for the benefit of a section of the public, imposes a duty of a positive kind, the person charged with the performance of the duty cannot be estopped be prevented from exercising his statutory powers. A petitioner in a divorce suit cannot obtain relief simply because the respondent is estopped from denying the charges, as the court has a statutory duty to inquire into the truth of a petition.
In Chalmers v Paradoe (1963) 1W.L.R.687 the court held;
"The friendly arrangement entered into between the respondent and the appellant amounted to granting the appellant permission to treat a certain portion of the land comprised in the lease as if the appellant were in fact the lessee. Under this arrangement the respondent gave the appellant possession of part of the land. He granted to the appellant permission to enjoy exclusive occupation of that portion of the land, and to erect such buildings thereon as he wished. Such an arrangement could we think be considered an alienation, as was argued in Kuppan v Unni. Whether or not it was an alienation it can, we think, hardly be contended that it did not amount to a dealing in land with the meaning of section 12. It is true that the 'friendly arrangement' did no amount to a formal sublease of a portion of the land or to a formal transfer of the lessee's interest in part of the land comprised in the lease. The least possible legal effect which in our opinion could be given to this arrangement would be to describe it as a licence to occupy coupled with possession, granted by the lessee to the appellant. In our opinion, the granting of such a licence and possession constitutes a dealing with the land so as to come within the provisions of section 12, Ca. 104. The consent of the Native Land Trust Board was admittedly not obtained prior to this dealing, which thus becomes unlawful and acquires all the attributes of illegality. An equitable charge cannot be brought into being by an unlawful transaction and the appellant's claim to such a charge must therefore fail."
In Re CM Group (Pvt) Ltd's Caveat [1986] 1 Qd R 381, it was held that property did not pass in equity until the required municipal council approval was obtained. In Brown v Heffer (1967) 110 CLR 344, an interest in equity did not pass because the required consent of the Minister had not been obtained.
On the strength of the authority in the above cases, I think it is quite possible to say that the mandatory requirement of Section 12 of the Native Land Trust Act and the legal consequences that flow from non-compliance defeat the Plaintiff's claim for an equitable charge or lien over the land in view of the money expended on the property.
(12) The general principle, founded on public policy, is that any transaction that is tainted by illegality in which both parties are equally involved is beyond the pale of the law. No person can claim any right or remedy whatsoever under an illegal transaction in which he has participated "Ex turpicausa non oritur action" [Cheshire and Fie foot; Law of Contract, 09th Edition, P323]
(13) For the reasons which I have endeavored to explain in the paragraph eleven (11), it seems to me perfectly plain that the Plaintiff is not entitled to an equitable charge or lien. Nevertheless, the case before me does not rest there. It is common ground that the land, the subject of the action is Native Land. It is essential to bear in mind that the Defendant is not the registered owner of land. The Plaintiff built a house on part of the Defendant's land by expending his own money not knowing that the said land is Native Land. The Plaintiff expended money on the land in the expectation, induced and encouraged by the Defendant that the property to be built is to be his home for as long as he chose to reside in it, although nothing was said as to how long that period would be. The basis was contractual and not a bare licence because the Plaintiff spent his skill, energy and money, not merely at the invitation, but with the express encouragement of the Defendant. Therefore, a contract arises out of the conduct of the Defendant.
A plain reading of Section 12 of the Native Land Trust Act would show that the Act is directed against alienation or dealing with the Native Land without the consent of the Board.
I get the distinct impression that this Section is intended to ensure that the Board's power of control and beneficial interests of the Fijian owners are not to be prejudiced by unauthorized transactions.
The pivotal question that awaits determination by the Court is whether the terms and the spirit of Section 12 of the Native Land Trust Act is violated by a cause of action that sounds in contract?
The case before me is concerned with a contractual right. The question is whether such a right falls outside the purview of Section 12 of the Native Land Trust Act?
If, as I apprehend, the context of the Section and the purpose of the act contain nothing to suggest that the words of the Section bear other than their Natural and ordinary meaning.
I ask myself, in the present circumstances, in the natural and ordinary meaning of Section 12 of the Native Land Trust Act, whether a contractual right could be said to amount to dealing with the Native Land under the purview of Section 12 of the Act?
The aforesaid are very difficult and complicated questions of law. They are to be adjudged in the trial Court. The rights of the parties depend on the questions raised above. Therefore, it is not competent for this Court to dismiss the action on the ground that it discloses no reasonable cause of action. In the result, I am constrained to answer the third question posed at paragraph four (04) in the affirmative.
The principles that guide the exercise of the court's discretion in an application under Order 18 r.18 of the High Court Rules are too well-known to require extensive citation of authority. Suffice it to refer to the judgment of the Fiji Court of Appeal in A.G. v. Shiu Prasad Halka (1972) 18 F.L.R. 2010 where it said:
"The power to strike out a Statement of Claim given under Order 18 r.19 is one which is to be sparingly used and is not appropriate to cases involving difficult and complicated question of law."
(14) I have no difficulty in accepting the rule of law enunciated in "Chalmers v Pardoe (supra). But the fatal flaw in Chalmers is this. It is not concerned with a purely contractual right or purely personal right in a family context or whether it would be inequitable to grant an order for possession to the registered proprietor. See;
❖ Chand v Prime Land Developments Ltd (2005) FJHC 622
❖ Maharaj v Chand, (1986) 3 AER 107 Privy Council decision
❖ Inwards v Baker [1965] EWCA Civ 4; (1965) 2 Q.B. 29
(15) At the oral Hearing before the Court, the Counsel for the Defendant placed much reliance on "Chalmers v Pardoe" (supra). In my view, "Chalmers" is distinguishable. It is a case between two former friends and business associates, one of whom as lessee of Native Land had consented to the building by the other. The appeal to the Judicial committee was concerned only with the appellants claim to an equitable charge or lien for which he relied on the kind of proprietary estoppel. Moreover, "Mistry Amar Singh v Kulubya (supra) is distinguishable. In "Mistry", the Plaintiff was the registered owner of the property. It is essential to bear in mind that in the case before me the Defendant is not the registered owner of the property.
(16) In "Kulamma v Manadan" (1968) AC 1062, in a judgment delivered by Lord Wilberforce the Judicial Committee distinguished Chalmers, holding that merely because an agreement can in certain of its, aspects be described as a licence, it is not necessasary to be described as a dealing with the land.
(17) Broadly speaking, merely because an agreement can in certain of its aspects be described as a licence, it is not necessarily to be described as "dealing" with the land. There is no definition of "dealing with" in the Native Land Trust Act. Reading as best I can between the Sections of the Act, it is quite plain that Sections 7,8 and 9 place restrictions on the power of the board to sell, lease or grant licences in respect of native land . Section 9 using the expression "dealt with by way of lease or licence" and Section 11 requires licences of native land to be in a prescribed form. My own understanding is that merely because an agreement can, in certain of its aspects, be described as, or as comprising, a licence, it should not be classified with the type of licence referred to in the aforesaid Sections or described as a dealing with the land. Hon. Justice Gould said in the Fiji Court of Appeal in the case of Kulamma v Mandan, Appeal No; 07 of 1966 that the term licences covers a whole range between one which confers extensive rights over a land as almost to amount to a lease and one which merely confers permission to enter without liability to an action for trespass. The point of law to be adjudged by the trial Court is where, on the scale, the rights conferred by an agreement are to be found. This is the reason why I say that this case involves very difficult and complicated question of law.
I wish to emphasise that a case must be very clear indeed to justify summary intervention of the Court. It is a jurisdiction which
ought to be very sparingly exercised and only in very exceptional circumstances.
I venture to say beyond a per-adventure that this is not case for the exercise of any summary power.
Fundamentally, courts are required to determine cases on merits rather than dismissing them summarily on procedural grounds.
It is a fundamental principle of any civilized legal system that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representative are present and heard.
In the context of the present case, I have no hesitation in leaning in favour of the more liberal judicial thinking reflected in the dictum of O'Conner J in Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 C.L.R. 76. Hon Judge said;
"Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of this case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexations will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."
At this juncture, I bear in mind the "caution approach" that the court is required to exercise when considering an application of this type.
I remind myself of the principles stated clearly in the following decisions.
In Dev. v. Victorian Railways Commissioners[1949] HCA 1; (1949) 78CLR 62, 91 Dixon J said:
"A case must be very clear indeed to justify the summary intervention of the court ... once it appears that there is areal question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and anabuse of process."
In Agar v. Hyde [2001] HCA 41; (2000) 201 CLR 552 at 575 the High Court of Australia observed that:
"It is of course well accepted that a court ... should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes."
(F) CONCLUSION
Having had the benefit of written submissions for which I am most grateful and after having perused the pleadings, doing the best that I can on the material that is available to me, I venture to say beyond a per-adventure that the Statement of Claim discloses a reasonable cause of action and constitutes tribal issues.
I could see nothing to change my opinion even on the basis of exhaustive work contained in "Precedents of Pleadings" by Bullen and Leake", "A practical approach to Civil Procedure" by "Stuart Sime", Thirteenth Edition and "Commentary on Litigation" by "Cokes".
Accordingly, there is no alternate but to dismiss the Summons.
I cannot see any other just way to finish the matter than to follow the law.
(G) FINAL ORDERS
- ❖ The Defendant's Summons dated 29thAugust 2015 is dismissed.
- ❖ The Defendant is ordered to pay costs of $1000.00 (summarily assessed) to the Plaintiff which is to be paid within 14 days from the date hereof.
.......................................
Jude Nanayakkara
Acting Master of the High Court
At Lautoka
25th November 2015
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